National Blog

Bush Judicial Appointee Backs Mandate

In the 6th Circuit Court of Appeals, Judge Jeffrey Sutton wrote the legal opinion for the three-judge panel backing the "Constitutionality" of ObamaCare's individual mandate.

Judge Sutton was appointed by former President George W. Bush, and according to many judicial analysts, is cut from the same judicial cloth as Chief Justice John Roberts - his decisions are often based on recent legal precedent, rather than a strict constructionist view of the Constitution.

Sutton’s conservative case for the insurance mandate, as laid out in his 26-page concurring opinion, amounts to this: Supreme Court precedent, like it or not, favors a growing expansion of the Commerce Clause, and Congress has wide latitude to address the nation’s problems and has a presumption of constitutionality.

“There is another way to look at these precedents — that the Court either should stop saying that a meaningful limit on Congress’s commerce powers exists or prove that it is so,” Sutton wrote.

Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, calls it the “put up or shut up” dare to the Supreme Court. “He says, ‘if you’re going to strike this down, you’re going to have to define the limiting principle.’ ”

Ilya Somin, an assistant professor of law at George Mason University who believes the mandate is unconstitutional, warns that Sutton’s argument goes further than other judges who have upheld the law. He says Sutton’s opinion would allow for Congress to implement mandates to buy anything — health-related or not.

Referring back to the 1819 case, McCulloch v. Maryland, Sutton suggests in the end, the legislature will be tasked with removing or keeping the individual mandate, not the courts.